PLEASE TAKE NOTICE that a decision and order affirming the decision of the
Wisconsin
Employment Relations Commission, of which a true and correct copy is hereto attached, was
signed by the court on the 31st day of March, 1995, and duly entered in the Circuit Court
for
Racine County, Wisconsin, on the 31st day of March, 1995.

Notice of entry of this decision and order is being given pursuant to secs. 806.06(5)
and
808.04(1), Stats.

Dated this 7th day of April, 1995.

JAMES E. DOYLE

Attorney General

/s/ David C. Rice

David C. Rice

Assistant Attorney General

State Bar No. 1014323

Attorneys for Defendant Labor and Industry Review Commission

Wisconsin Department of Justice

Post Office Box 7857

Madison, Wisconsin 53707-7857

(608) 266-6823

STATE OF WISCONSIN

CIRCUIT COURT

RACINE COUNTY

RACINE EDUCATION ASSOCIATION,

Plaintiff,

vs.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION,

Defendant.

Case No. 94-CV-1820

Decision No. 27982-C

DECISION AND ORDER

This matter is before the Court on the petition of Racine Education Association ("the
Association")
for judicial review of a decision of the Wisconsin Employment Relations Commission
("WERC"
or "the Commission") pursuant to Chapter 227 of the Wisconsin Statutes. In its decision
dated
June 23, 1994, the WERC affirmed the Hearing Examiner's order dismissing the
Association's
prohibited practice complaint against the Racine Unified School District ("the District"). The
central issue is whether the District was refusing to bargain in good faith when it filed a unit
clarification petition during the course of District initiated interest arbitration proceedings for
purposes of clarifying the bargaining unit solely to come under the provisions of 1993
Wisconsin
Act 16 that would allow the District, upon impasse, to avoid interest arbitration and
implement
its qualified economic offer unilaterally. An additional issue is whether the commission was
bound by the decision in Madison Teachers, Inc. v. Madison Metropolitan School
District, Dane
County Circuit Court Case No. 93-CV-3970 (1993), ("MTI v. MMSD"), in
which Judge Nichol
determined in a similar fact situation that the Madison District's attempt to clarify the
existing unit
constituted bad faith bargaining.

FACTS

The facts in this matter are largely undisputed and will be recited in summary fashion
here. While
the Association contends in its brief that the Commission "neglected to address obvious
factual
disputes between the parties" [i.e., the timing of the District's objection to the bargaining
unit's
composition and the motivation for the unit clarification petition] in its decision, the record
reflects that the Commission's findings resolved both of the claimed disputes in favor of the
Association. See Commission Findings 6a and 6b.

The Association at all times relevant to this dispute has been the exclusive bargaining
representative for employees of the District and has maintained an ongoing collective
bargaining
relationship with the District. The Association was certified as the exclusive bargaining
representative for all regular full-time and regular part-time certified teaching personnel
employed
by the District, but excluding on-call substitute teachers, interns, supervisors, administrators,
and
directors by the Wisconsin Employment Relations Board on April 28, 1965. Over the years,
the
District and Association mutually agreed to expand the previously certified unit, and a
number of
positions that are not "school district professional employees" as defined by Section
111.70(1)(b)
have been voluntarily recognized by the parties for inclusion in the bargaining unit. That
bargaining unit has been determined to be appropriate for collective bargaining purposes for
approximately 20 years, and throughout that period of time, the District and Association have
maintained and enforced a series of collective bargaining agreements, the most current of
which
expired on August 24, 1992.

The Association and the District exchanged initial offers for a successor contract for

the period 1992-94 in July of 1992. They then met for bargaining on at least nine
occasions. The
District filed for interest arbitration pursuant to Section 111.70(4)(cm), Stats., in January
1993.
The District filed a unit clarification petition with the Commission on January 14, 1994,
seeking
to have non "school district professional employees" separated from the existing bargaining
unit
and put into a separate unit. At no time prior to the January 14, 1994, filing of the unit
clarification petition did the District ever raise the issue of the appropriateness of the existing
bargaining unit.

On August 12, 1993, 1993 Wisconsin Act 16 became effective, substantially changing
the
Municipal Employment Relations Act ("MERA"). Prior to the effective date of Act 16,
MERA
provided for final offer interest arbitration on both economic and non-economic issues.
Section
111.70(4)(cm), Stats. Section 2207ak of Act 16 created Section 111.70(4)(cm)5s, Stats.,
which
provides that in a collective bargaining unit consisting of school district professional
employees,
if the municipal employer makes a "qualified economic offer" applicable to any period
beginning
on July 1, 1993, no economic issues are subject to interest arbitration for that period. The
Commission findings supporting the dismissal of the Association's prohibited practices
complaint
found that the District sought to clarify the existing bargaining unit solely to come under
certain
provisions of Act 16 allowing the District to avoid interest arbitration if it makes a qualified
economic offer and to unilaterally implement its qualified economic offer upon deadlock
(Commission Finding 6b).

All parties have acknowledged the existence of a decision by the Dane County Circuit
Court in
Madison Teachers, Inc. v. Madison Metropolitan School District, supra. In that
declaratory
judgment action, the Union represented a collective bargaining unit consisting of both
employees
who are "school district professional employees" and employees who are not "school district
professional employees." Shortly after petitioning for interest arbitration, the Madison
School
District petitioned the Commission for unit clarification, seeking, as in the instant case, to
exclude
from the existing bargaining unit those employees who are not school district professional
employees. The Union commenced an action in circuit court to declare that the amended
version
of MERA which would allow the district to avoid interest arbitration on economic issues by
submitting a qualified economic offer did not apply to the bargaining unit represented by the
union
because it was a unit "consisting of" not only school district professional employees but also
employees who were not school district professional employees. The court granted the
declaratory
relief sought by the union and further ruled that the school district had committed a
prohibited
practice (a failure to bargain in good faith) by petitioning for unit clarification while the
negotiation and interest arbitration were pending. It further enjoined the school district from
proceeding with its petition for unit clarification, ruling that the existing bargaining unit was
not
repugnant to the amended version of the statute. The Association argues that the Dane
County
decision controls this case as well.

As an aside, the parties have noted that the unit clarification petition which forms the
basis of the
alleged prohibited practice was decided by the Commission on August 11, 1994, splitting the
previously existing bargaining unit into two separate bargaining units. The Association has
not
petitioned for review of the Commission's decision in that matter.

DISCUSSION

This Court is asked to determine two questions of law: 1) whether the District
committed a
prohibited practice by filing the petition for unit clarification, and 2) whether the
Commission was
bound by a contrary decision of the Circuit Court for Dane County in MTI v.
MMSD, supra.

In reviewing the conclusions of law made by an administrative agency, three levels of
deference
are applied. The "great weight" standard is given when the "agency's experience, technical
competence, and specific knowledge aid the agency in its interpretation and application of the
statute..." The next level of review is the "due weight" or "great bearing" standard which is
given
when "the agency decision is 'very nearly' one of first impression." The lowest level of
deference
is the de novo standard, in which "no weight" is given when the case is one of first
impression
and the agency has no special expertise or experience in the particular area. WSEU v.
WERC,
189 Wis.2d 406, 410-11 (1994), citing Sauk County v. WERC, 165 Wis.2d 406
(1991). The
Court believes that the middle burden ("due weight" or "great bearing" standard) is
appropriate
on the prohibited practice issue. The WERC has specialized knowledge in the interpretation
and
application of MERA, but the specific issue here to be decided in light of the Act 16
amendments
is very nearly one of first impression. On the issue of deference to the Dane County
decision, the
Court believes that the de novo standard is appropriate.

The Court addresses first the issue of whether the Dane County decision in MTI
v. MMSD is
controlling, since an affirmative answer to that question would be dispositive of this case.
Interestingly, both the District and the Commission cite an unpublished circuit court decision
from
Washington County for the proposition that an unpublished circuit court decision is generally
not
citable and is binding only upon the particular case in which it was rendered.

111.07 Prevention of Unfair Labor Practices. (1) Any
controversy concerning unfair labor
practices may be submitted to the commission in the manner and with the effect provided in
this
subchapter, but nothing herein shall prevent the pursuit of legal or equitable relief in courts
of
competent jurisdiction.

Ordinarily circuit court judgments or decisions are not citable as authority.
Servomation Corp.
v. Dept. of Revenue, 106 Wis.2d 616, 317 N.W.2d 464 (1982). While circuit court
decisions
are often considered for their reasoning, as a research aid, other circuit courts are not bound
by
them and, indeed, it is not uncommon for two circuit courts in the same county to rule on an
issue
contrary to one another. This Court can find no statute or case law mandating the
Commission
to follow a circuit court decision, whether it be Dane or another county, in a case to which
the
WERC was not a party. Therefore, while the reasoning in the Dane County case is
instructive,
this Court does not believe that the instant case is controlled by MTI v. MMSD.

The substantive issue raised is whether the District failed to bargain in good faith when
it filed the
petition for unit clarification. MERA vests the Commission with discretion to determine the
appropriate bargaining unit for the purpose of collective bargaining. Section 111.70(1)(b)
and
111.70(4)(d)2.a, Stats. Prior to the Act 16 amendments, Sec. 111.70(1)(b) defined
"collective
bargaining unit" as "the unit determined by the Commission to be appropriate for the purpose
of
collective bargaining." Section 2207ah of 1993 Wisconsin Act 16 amended the definition of
collective bargaining unit in Sec. 111.70(1)(b) to mean "a unit consisting of municipal
employees
who are school district professional employees or of municipal employees who are not school
district professional employees that is determined by the Commission to be appropriate for
the
purpose of collective bargaining." The term "school district professional employee" was
separately
defined to mean "a municipal employee who is employed by a school district, who holds a
license
issued by the state superintendent of public instruction ... and whose employment requires
that
license." Sec. 111.70(1)(ne), Stats., as created by Sec. 2207ai of Act 16. The significance
of the
new definitions is Act 16's creation of a special interest arbitration provision which excludes
arbitration of economic issues where a municipal employer submits a qualified economic
offer in
a collective bargaining unit 'consisting of school district professional employees.' Sec.
111.70(4)(cm)5s, Stats., as created by 1993 Wisconsin Act 16, Sec. 2207ak. Thus, the
makeup
of the bargaining unit determines whether economic issues will be subject to binding
arbitration
upon impasse.

The separate issue of whether a "mixed" bargaining unit is valid under the amended
Sec.
111.70(1)(b) is not before this Court, although all parties have to some extent addressed the
merits
of that issue. This threshold inquiry is appropriate to the extent that a plausible
interpretation of
amended 111.70(1)(b) is that a bargaining unit can consist of school district professional
employees, municipal employees who are not school district professional
employees, but not a
"mixed" unit containing both (as is the case here.) A change in the law in the midst of the
bargaining process will inevitably raise new questions; the inquiry here is whether those
questions
can appropriately be raised in the middle of ongoing contract negotiations. The Association's
point is well taken that a part of the time period for which the parties were negotiating was
the
1992-93 school year - a period arguably not covered by the new act. The "qualified
economic
offer" provisions of the new statute refer to a QEO "applicable to any period beginning on
July
1, 1993." Here, the parties were retroactively negotiating a 1992-93 and 1993-94 contract
when
the unit clarification petition was filed in 1994. While the retroactive nature of the
negotiations
may procedurally muddy the waters, it is not unreasonable to allow an inquiry as to whether
the
existing bargaining unit continues to be appropriate.

The Association concedes that it is generally true that a unit clarification petition may
be filed at
any time. It cites the MTI case, however, for the proposition that in particular
situations, based
upon the totality of the circumstances, such a petition may constitute bad faith bargaining. In
this
case, the Association cites the parties' prior bargaining history and, particularly, the timing
of the
request for unit clarification (coming some five months after the effective date of 1993
Wisconsin
Act 16). The Commission deals with this argument in its decision memorandum, reasoning
that
the need to seek to clarify the existing unit to gain the benefit of Act 16 only became
apparent in
December 1993 when the MTI case was decided, and the District thereafter
filed its petition in
January 1994. [Commission decision pg. 12, footnote 5.]

The Commission crystallized its view of the issue as follows:

"In effect, complainant asks us to conclude that a party engages in
bad faith bargaining when
it asks an administrative agency (the WERC) a question (through filing a unit clarification
petition)
which if resolved in the questioner's favor will give that party access to statutory rights
which will
enhance the party's bargaining position. We do not find such a scenario constitutes bad faith
bargaining. As argued by respondents, engaging in activity whereby a party seeks to
exercise a
statutory right is not bad faith bargaining.

. . .

The law defining "collective bargaining units" and the scope of interest arbitration
rights
changed while the parties ... were bargaining a contract. The change in the law raised
bonafide questions as to whether the existing units continued to be appropriate and what
interest arbitration procedures applied. Change in the law in the midst of a bargain is
inherently disruptive. However, the disruption was caused by the legislature, not the
employer. Under such circumstances, the employer can hardly be faulted for asking the
agency responsible for administering the new law whether the change impacts on the
parties' existing unit. [Commission decision pgs. 12-13.]

The Court agrees with the Commission's analysis and is satisfied that the Commission
acted within
the law when it dismissed the Association's prohibited practice complaint. The Commission
has
stated a rational basis for its determination that the District did not engage m bad faith
bargaining
when it filed its unit clarification petition.

ORDER

Now, therefore, it is ordered that the decision of the WERC dismissing the
Association's
prohibited practice complaint is affirmed, and this petition for judicial review is hereby
dismissed.